1. Introduction: From theory to practice

The principle of Open Content licencing was invented to facilitate the use and distribution of copyright-protected works. Copyright is a rather restrictive regime which grants a series of exclusive rights to the copyright holder, including the right to distribute or modify a work. These acts cannot be undertaken without specific permission from the right holder.

Notwithstanding, there are certain types of uses which can be undertaken without permission. These are known as “limitations” or “exceptions” to the exclusive rights, which include, for example, the right to quote from a work or to make a private copy. But these limitations are not very broad and at times difficult to assess.

The inventors of the Open Content idea considered the copyright regime as too restrictive for both users and creators alike. Therefore, they decided to establish a system of easy-to-use standard licences (i.e. rules that allow the use of copyright-protected works under certain conditions) in order to promote a free culture and the development of a digital commons. Nowadays, millions of copyright-protected works are published online under Open Content licences, including movies, music, images, texts and graphics which can be used, distributed, made available, modified or remixed by anybody without explicit consent from the copyright holder or the payment of a licence fee. It is thus fair to say: The digital commons became a reality within the last decade.

The Open Content Model relies on three basic principles:

The simplification of legal transactions: The Open Content licences are published online and can be used by any interested creator or other rights owner. They provide rights owners with a tool that allows them to conclude legally binding agreements with anybody who is interested in using their work. Unlike in the usual legal (contractual) transaction, there is no need for the parties – i.e. licenser (right holder) and licensee (user) – to contact each other via other means.

The granting of a broad, royalty-free permission to use: The user is allowed to use the work freely for most purposes. In fact, the user’s rights to use the content are much wider than the exceptions envisaged under conventional copyright law. All rights are granted without costs. The right holder, on the other hand, can choose among a variety of licences ranging from very restrictive to very permissive ones, allowing them to decide which rights are granted freely and which are reserved for individual agreements.

The reduction of legal uncertainties: Both users and right holders benefit from the simplicity of the licences, as the legal regime they implement is considerably less complex than copyright law itself. The benefit for the licenser consists in being able to tell their users in a plain and standardised language what they can and what they cannot do with the work. Rules that are understood are more likely to be obeyed. The user, on the other hand, knows what they are allowed to do and can easily understand the obligations.

The guiding principle of the Open Content idea is “some rights reserved.” It was conceived in contrast to the traditional copyright caveat “all rights reserved” which may be found on many CDs, books or magazines. At the same time, the “some rights reserved” principle marks off the Open Content concept from the public domain: Open Content is neither free (of copyrights) nor can it be used without permission or rules. It is protected by copyright law and can be used only subject to the conditions of the legally binding licence the rights owner chooses for their work. Therefore, public licencing is neither a political nor a legal statement about Intellectual Property Rights (IPR) nor does the concept challenge the IPR system. Public licencing is rather a concept that facilitates the handling of copyright protected works for the benefit of rights owners and users alike.

This guide was written to facilitate the legitimate and correct use of Open Content and Open Content licences. It was written for anyone wishing to learn more about Open Content, particularly for creators, companies, organisations and private users, and not so much for legal experts. Its aim is to keep information and language simple. This requires a balancing act between simplicity and professional precision which, hopefully, has been achieved in the present publication. Feedback and further suggestions to the author are always welcome.

Please note that this guide was published to provide general information and to answer common questions about Open Content licencing, in some cases reflecting the author’s personal opinion only. It is not intended to constitute or be a substitute for legal advice. Those seeking legal advice on a particular case are advised to consult a lawyer.
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